Judgment Shiva Kirti Singh and S.M.M.Alam JJ. 1. This appeal is directed against the judgment and order dated 8.1.1988 passed by the 5th Additional Sessions Judge, Bhojpur, at Ara, in Sessions Trial No. 168 of 1982 whereby all the three appellants, namely, 1. Lal Mohar Mahto, 2, Bindeshwari Mahto and 3. Tribhuwan Mahto have been convicted for the offence under sec. 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have also been convicted for the offence under sec. 323 of the Indian Penal Code for which they have been awarded rigorous imprisonment for six months each. 2. The prosecution case, as disclosed in the fard bayan of P.W.4 Yamuna Mahto, is to the effect that the deceased Deo Narain Singh Pujeri, uncle of the informant was employed as Darban in the Electricity Department in the district of Palamau. He had come on five days leave on 8.8.81. On 9.8.81 he was observing silence for the whole day and was present at home at about 6/6.30 in the evening when a quarrel took place between the son of accused Ram Pravesh Mahto (died during trial) and Sawiranjan Singh, son of informants brother Jawala Singh. Deo Narain Singh intervened to separate the boys who were fighting and at that time accused Ram Pravesh Mahto (dead) with Gandasa, his son appellant Bindeshwari Mahto with lathi, appellant Tribhuwan Mahto with Farsa and appellant Lai Mohar Mahto with lathi came and started abusing. Ram Pravesh Matho gave a Gandasa blow on the head of Deo Narain Singh (the deceased), Bindeshwari Mahto gave a lathi blow on the left temporal region and when the informant went to save him along with his brother Jwala Singh (P.W.3), his "Bhabhi", Shanti Devi (P.W.8) and his father Izlas Singh then all of them were assaulted by the four accused persons. P.W.5 Kamta Singh and P.W.2 Triveni Mahto and other co-villagers also arrived and pacified the parties. Thereafter Dr. Shiv Prassan Singh was called from Muabkala and he applied ointment and bandage. On 10.8.81, money was arranged for further treatment and the informant brought Deo Narain Singh for treatment to Sadar Hospital, Ara, at about 10.45 in the night and at the time of admission into the hospital he was in unconscious state and reportedly he died on 11.8.81 at about 2.00 A.M. in the night. 3. On 10.8.81, money was arranged for further treatment and the informant brought Deo Narain Singh for treatment to Sadar Hospital, Ara, at about 10.45 in the night and at the time of admission into the hospital he was in unconscious state and reportedly he died on 11.8.81 at about 2.00 A.M. in the night. 3. The aforesaid fard bayan of P.W.4 was recorded on 11.8.81 at 07.15 A.M. at Ara Hospital leading to Sahar P.S. case No. 0107 dated 11.8.81 under sec. 302/34 of the Indian Penal Code. After investigation the police submitted chargesheet. After cognizance the case was committed to the Court of Sessions. The accused-appellants pleaded not guilty to the charges and were put on trial but they have been ultimately convicted and sentenced by the judgment under appeal. 4. From the trend of cross-examination and argument advanced on behalf of the accused-appellants, it appears that their defence is of false implication on account of land dispute. In the cross-examination, the informant and some close relations of the deceased have even been suggested that since the deceased was unmarried and had no issue he might have been killed by the prosecution party and the enemies have been subsequently implicated. 5. The prosecution in order to prove its case has examined only nine witnesses but by mistake P.W.1 Murat Ram, who is a formal witness, has again been examined as P.W.10 for proving certain documents such as injury report of the three injured and seizure list. P.W.2 Triveni Mahto and P.W.5 Kamta Singh find mention as witness in the fard bayan. They allegedly came and separated the parties. In his deposition in court P.W.2 Triveni Mahto has claimed that all the four accused came with their respective weapons and started assaulting Deo Narain Singh. He has not stated specifically as to who caused injury to the injured. P.W.5 Kamta Singh on the otherhand has not supported the prosecution case. He has categorically stated that he had not seen either any as- sault or the murder but had only heard about the same. P.W.3 Jawala Mahto is the brother of the informant and named as a witness and injured in the fard bayan. In his examination-in-chief, he has supported the prosecution case, specifically in respect of assault upon the deceased by Ram Pravesh Mahto, who used Gandasa and by Bindeshwari Mahto, who used lathi. P.W.3 Jawala Mahto is the brother of the informant and named as a witness and injured in the fard bayan. In his examination-in-chief, he has supported the prosecution case, specifically in respect of assault upon the deceased by Ram Pravesh Mahto, who used Gandasa and by Bindeshwari Mahto, who used lathi. He has not named that who assaulted him but in cross-examination he admitted that before his arrival at the place of occurrence, about 20-25 persons had already arrived and he saw Deo Narain Singh in fallen condition and could not say how many injuries were present on his person. He clearly admitted that he arrived at the place of occurrence after the deceased had received injuries and he was not in a position to say who had assaulted his uncle, the deceased. 6. P.W.4 Yamuna Mahto is the informant. He has supported the prosecution case in all material particulars in respect of assault upon the deceased. According to him, when the deceased Deo Narain Singh was trying to intervene and separate the two boys, accused Ram Pravesh Mahto with Gandasa, Bindeshwari Mahto with lathi and other two co-accused with their arms came. Accused Ram Pravesh Mahto used his Gandasa to inflict injury on the head of Deo Narain Singh (deceased) and Bindeshwari Mahto used his lathi to inflict injury on the left temporal portion. In respect of assault upon the injured witnesses, P.W.3 and P.W.8 as well as in respect of Izlas Mahto, the father of the informant, the informant has named only Ram Pravesh Mahto and Bindeshwari Mahto and has not attributed any assault upon the appellants Lai Mohar Mahto and Tribhuwan Mahto. 7. P.W.6 Ram Rajya Singh has deposed as a forma! witness, who had admitted his signature on the seizure but has shown his hostility by deposing that his signature was obtained on a plain paper. P.W.7 Sabiranjan Singh is the nephew of the informant and son of P.W.3 Jawala Mahto. Allegedly, he was having quarrel with one Umesh son of accused Ram Pravesh Mahto which ultimately led to the occurrence. He was 14 years of age when he was examined as witness in July, 1987 and thus he was aged about 8 years at the time of the alleged occurrence. Allegedly, he was having quarrel with one Umesh son of accused Ram Pravesh Mahto which ultimately led to the occurrence. He was 14 years of age when he was examined as witness in July, 1987 and thus he was aged about 8 years at the time of the alleged occurrence. He has named all the accused persons, who came variously armed when this witness was having a quarrel and fight with the son of accused Ram Pravesh Mahto and the deceased was trying to separate them. He has claimed to have seen only Ram Pravesh Mahto inflicting one Gandasa injury on the head of Deo Narain Singh. Thereafter, this witness became afraid and went away to hide himself. He claimed to have come out after the occurrence and to have seen his mother, father, Deo Narain Singh and Izlas Singh in injured condition. 8. P.W.8 Shanti Devi is the wife of P.W.3 and mother of P.W.7. According to the fard bayan, she had also received injury in the alleged occurrence. She has supported the prosecution case in all material particu- lars and has specified that she saw Ram Pravesh Mahto causing Gandasa injury on the head of Deo Narain Singh and Bindeshwari Mahto caused injury to Deo Narain Singh by lathi. Although P.W.3 has not specified as to who caused injury to him but this witness has alleged that Tribhuwan Mahto had caused injury to P.W.3 and Lai Mohar Mahto caused injury to P.W.3 as well as to her. She has stated that her father-in- law Izlas Mahto is on death bed, probably to explain as to why he was not examined as a witness although he was alleged to be one of the injured. 9. P.W.9 Dr. U. P. N. Singh held au- topsy on the dead body of deceased Deo Narain Singh on 11.8.81 at 10.00 A.M. He found rigor mortis present, both on upper and lower limbs and two ante mortem injuries; (i) lacerated wound 2-1/2" x 1/4" x scalp deep on the head and (ii) diffused swelling on the left side of forehead and face. On dissection, he found scalp of both sides and top to be very much swollen and full of blood looking blackish from which blood was trickling. There was a fracture 8" long starting from above right ear and going upwards and backwards. On dissection, he found scalp of both sides and top to be very much swollen and full of blood looking blackish from which blood was trickling. There was a fracture 8" long starting from above right ear and going upwards and backwards. There was another "L" type shaped fracture on the left side of the scalp-6" long one limb going downwards to the bone of the scalp and another backwards. There was subdural hemitoma on the left side and the brain was very much congested. According to the doctor, both injuries were caused by hard and blunt substance, might be by hard and blunt portion of Gandasa. The death was caused by shock and haemorrhage caused by the above mentioned injuries which were sufficient in ordinary course of nature to cause death. Time elapsed since death was opined to be within twelve hours from the time of post mortem examination. 10. On behalf of the appellants, it has been submitted that neither P.W.2, P.W.3, P.W.4, P.W.5 nor P.W.7 have specified that appellant no.1 Lai Mohar Mahto and appellant no.3 Tribhuwan Mahto had caused injuries to any particular injured. In fact, placing reliance upon the deposition of the informant (P.W.4), it was submitted that he has clearly confined the allegation of assault upon the injureds also against Rampravesh Mahto and appellant Bindeshwari Mahto. Hence, it has been submitted that appellant Lai Mohar Mahto and Tribhuwan Mahto deserve benefit of doubt in respect of allegation that they participated in assault, at least upon the injureds. Next submission on behalf of the appellants is to disbelieve the entire prosecution case on account of inordinate delay in lodging the fard bayan and the F.i.R. when the informant has admitted that he had earlier reported the alleged occurrence to the police available at a nearby outpost. It has also been submitted that the explanation of the informant that the police did not record his statement at the outpost should not be accepted and prosecution should be held guilty of suppressing the earliest version of the occurrence. It was also submitted that allegedly the genesis of the occurrence was a simple dispute between two children. Hence, it can not explain why the accused persons would go to the extent of assaulting the deceased over such a trifle matter. It was also submitted that allegedly the genesis of the occurrence was a simple dispute between two children. Hence, it can not explain why the accused persons would go to the extent of assaulting the deceased over such a trifle matter. In otherwords, it was suggested that there was no motive for the alleged occurrence and there could be no intention on the part of any of the appellants to cause death of the deceased. Lastly, it was submitted that according to the medical evidence, death was caused due to cumulative effect of the two injuries caused to the deceased and in absence of any intention on the part of appellant no.2 Bindeshwari Mahto in causing death, he should be exonerated of the charge under section 302/34 of the Indian Penal Code and held guilty of causing grievous injuries to the deceased by means of hard and blunt substance like lathi. 11. On going through the entire evidence on record, it is found that the deceased was an unmarried person aged about 45 years and clearly other members of his family wanted to avoid spending money on his treatment and, therefore, they initially depended upon a local doctor. When Deo Narain Singh could not improve and became unconscious he was carried to hospital at Ara on the next day during night hours and in that condition he appears to have died in the hospital in that very night on 11.8.81. The police appeared at the scene only thereafter and apparently without much enthusiasm for prosecuting the guilty persons, the fard bayan had to be lodged disclosing the circumstances in which Deo Narain Singh had received injuries. In these circumstances, we find no substance in the submission that the prosecution case should be disbelieved on account of delay in lodging of the case. It appears that initially all the parties were interested in suppressing the occurrence in case the injured improves. The informant has deposed that even the police did not record anything in writing at the first instance. In such circumstances, the question of suppressing the earliest version of the occurrence does not arise. 12. On a careful consideration of the evidence and the entire circumstances, it is also clear that the allegation of assault upon the deceased is primarily against Ram Pravesh Mahto, who died in course of trial and accused appellant Bindeshwari Mahto. In such circumstances, the question of suppressing the earliest version of the occurrence does not arise. 12. On a careful consideration of the evidence and the entire circumstances, it is also clear that the allegation of assault upon the deceased is primarily against Ram Pravesh Mahto, who died in course of trial and accused appellant Bindeshwari Mahto. As indicated earlier, the participation of other two appellants, Lal Mohar Mahto and Tribhuwan Mahto in the actual assault upon the deceased as alleged by P.W.2 does not inspire confidence. Their participation even in assault upon other injured is not free from doubt. The prosecution, in the facts and circumstances of the case, has failed to prove that all the accused persons shared any common intention of causing death of the deceased. Hence, in absence of any reliable material to show any assault at the hands of the appellants Lal Mohar Mahto and Tribhuwan Mahto, they deserve to be acquitted of the charge under sec. 323of the Indian Penal Code as well as under section 302/34 of the Indian Penal Code. They are, accordingly, acquitted of both the charges. 13. So far appellant Bindeshwari Mahto is concerned, the evidence of the informant as well as of P.W.8 Shanti Devi reliably proves that he inflicted a lathi injury on the left temporal region of Deo Narain Singh, who had also been assaulted on head by another co-accused. It is also proved by the medical evidence that the injuries caused by hard and blunt substance were sufficient in ordinary course of nature to cause death. It has already been held that there was no intention or common intention to cause death of the deceased but the injuries caused were on vital part like the head and with sufficient force. In such circumstances, it has to be held that appellant no.2 Bindeshwari Mahto had knowledge of the intended injury on head which was quite severe and had fractured the bone on left side of the head. In the circumstances in which appellant no.2 caused lathi injury on the left temporal region of the deceased, his case would be covered by clause 3rdly of sec. In the circumstances in which appellant no.2 caused lathi injury on the left temporal region of the deceased, his case would be covered by clause 3rdly of sec. 300 of the Indian Penal Code which provides that culpable homicide is murder if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. The close proximity of time in which appellant no.2 cause injury to the deceased when he had received injury at the hands of another accused on a vital portion like the head leaves no manner of doubt that at the particular time he shared the common intention to cause such bodily injury which proved sufficient in the ordinary course of nature to cause death of the concerned injured. In such circumstances, the conviction of appellant no.2 Bindeshwari Singh under section 302/34 of the Indian Penal Code requires no interference or modification. His conviction is, therefore, upheld. Since he has been awarded life imprisonment for the said offence, there is no scope of interference with the punishment. 14. In the result, appeal of appellant nos. 1 and 3, namely, Lal Mohar Mahto and Tribhuwan Mahto is allowed. They are acquitted of the charges and discharged from the liabilities of their bail bonds. Appeal of appellant no.2, Bindeshwari Mahto, is dismissed. His bail bonds shall stand cancelled. He should be taken into custody forthwith to serve out the remaining sentence in accordance with law.